2025:CGHC:50407 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1102 of 2025 Shivam Dahiya S/o Dadubhai Dahiya Aged About 22 Years R/o Semariya, Beersinghpur Chowk, Ps. Semariya, Dist. Reeva (MP) ... Appellant(s) versus State Of Chhattisgarh Through Police Station Ganj, Dist. Raipur (CG) ... Respondent(s) (Cause title is taken from the CIS) ------------------------------------------------------------------------------------------------------------------ For Appellant : Shri N Naha Roy, Advocate For Respondent/State : Ms Sunita Manikpuri, Dy GA ------------------------------------------------------------------------------------------------------------------ Hon'ble Shri Justice Ravindra Kumar Agrawal Order on Board 09.10.2025 1. Though this appeal is listed for consideration of application for suspension of sentence and grant of bail to the appellant, but with consent of the parties, this case is heard finally. 2. Appellant has filed this appeal under Section 415(2) of the Bhartiya Nagrik Suraksha Sanhita, 2023, being aggrieved by the impugned judgment of conviction and order of sentence dated 23.04.2025, passed by the learned Special Judge (NDPS Act), Raipur, CG, in Special Criminal Case- 204 of 2024 (annexure A1), whereby the appellant has been convicted for the offence punishable under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (For short, ‘NDPS Act’), and sentenced to undergo RI for 3 years, with fine of Rs.25,000/- with default stipulation. Digitally signed by V PADMAVATHI Date: 2025.10.16 11:07:04 +0530 Cra 1102 of 2025 2 3. Case of the prosecution, in brief, is that on 04.06.2024, during patrolling, PW9- Shankar Sahu, Assistant Sub-Inspector, PS-Ganj, Raipur, received secret information that a person, in possession of Ganja, is standing near Station Chowk, Gate-2. Secret information was informed to the Station House Officer, and two independent witnesses have been called through Constable Sukhchand Netam. Independent witnesses are Shiek Shakeel and Rajesh Shrivas, and they were informed about the secret information, and obtained their consent. Necessity to search without warrant panchnama was also forwarded to the CSP, and the Police party proceeded towards the place of incident, where they found the suspected accused, who tried to flee from the place. Immediately, he was detained by the Police, and then he disclosed his name. The right to search as provided under Section 50 of the NDPS Act was given to the appellant, and informed about his right for getting search by any Gazetted Officer, Magistrate or by himself. Appellant gave the consent for search by the Investigating Officer, Police party also allowed and gave their own search to him. On being search of the bag of the accused person, one white colour packet, which was rapped in polythene was found. The recovered contraband was physically identified by smelling, rubbing, and tasting, and it was found to be of Ganja. Notice under Section 91 of the CrPC was also given to the appellant to produce the valid document but he failed. Weighment witness was also called for, and after weighing the seized contraband, it was found to be 5.5 kg, and weighment panchnama was prepared. Recovered contraband was sealed, and specimen sealed panchnama was prepared. Spot map was prepared and Dehatinalishi was recorded Police party came back to the Police Station along with the accused persons and seized articles, and FIR was registered. Seized articles were kept in safe custody of Police Station Cra 1102 of 2025 3 Malkhana, through Malkhana Muharre, and Inventory under Section Section 52 (A) of the NDPS Act was prepared by the Special Railway Magistrate, Raipur, and samples were drawn. Samples drawn during the inventory were sent for their chemical examination to the FSL, Raipur, from where, FSL report was received, in which Ganja contents were found in the contraband. 4. After completion of investigation, learned trial court has framed charge against the appellant for the offence under Section 20(b)(ii)(B) of the NDPS Act. Learned trial Court has framed charge against the accused person, he abjured his guilt, and claimed trial. 5. In order to bring home the charges against the appellant, prosecution has examined as many as 9 witnesses. Statement under Section 313 of the CrPC of the accused appellant has also been recorded in which he denied the circumstances appearing against him, pleaded innocence, and submitted that he has been falsely implicated in the offence. 6. After appreciation of oral, as well as documentary evidence led by the prosecution, learned trial court has convicted and sentenced the appellant as mentioned in the earlier part of this judgment. Hence, this appeal by the appellant. 7. Learned counsel for the appellant would submit that he is not challenging conviction of the appellant, however, he is challenging the sentence awarded to the appellant, for the alleged offence. Only 5.5 kg Ganja has been seized from the appellant, and he has been sentenced RI for three years. However, appellant remained in jail for about 8 months, and the offence of 20(b)(ii)(B) of the NDPS Act does not provide any limited sentence. He would further submit Cra 1102 of 2025 4 that appellant is aged about 22 years at the time of alleged incident, young boy, having numerous family responsibilities. Considering the quantity of the contraband, and detention period of the appellant, his sentence may be reduced for the period already undergone by him. 8. On the other hand, learned counsel for the State would oppose learned counsel for the appellant, and would submit that considering the nature of impact on the society at large, appellant is not entitled for any leniency by this Court, as the learned trial Court has already shown moderation by awarding less sentence. 9. Heard learned counsel for the parties, and perused the record of the trial Court. 10. Although the appellant is not challenging his conviction, however, this Court deems it appropriate to examine the evidence of the witnesses led by the prosecution with respect to conviction of the appellant. 11. PW9- Shankar Sahu, ASI, is the Investigating Officer, who stated in his evidence that on 04.06.2024, while on patrolling duty, he received secret information about the present appellant, that he was standing near Station Chowk, Gate-2 having in possession of Ganja. Secret information was informed to the Station House Officer, and two independent witnesses have been called through Constable Sukhchand Netam. Independent witnesses PW6-Shiek Shakeel, and PW3-Rajesh Shrivas were informed about the secret information, and panchnama Ex.P4 was prepared. The secret information panchnama was prepared in the presence of witness, which is Ex.P23. Necessity to search without warrant panchnama Ex.P5 was also prepared. Cra 1102 of 2025 5 These two panchnamas were sent to the CSP Kotwali, Raipur, through intimation Ex.P4. When the Police party proceeded to the place of incident, they found the appellant near Railway Station Gate-2. He disclosed his name, and thereafter, they informed him about the right to search by any Gazetted Officer, Magistrate, or by himself. He gave notice under Section 50 of the NDPS Act, which is Ex.P6. Appellant gave his consent to be searched by himself, and panchnama Ex.P8 was prepared. Police party has also gave their own search to the accused person, and Talashi panchnamas Ex.P9, P10, and P11 were prepared. Talashi panchnama of the Police vehicle is Ex.P12. On search of the appellant, a packet wrapped with polythene was recovered from his bag, and necessary panchnamas Ex.P13, 14, and P15, were prepared. Contents in the packet were identified by rubbing, smelling and tasting, and it was found to be Ganja, and panchnama Ex.P16 was prepared. Notice under Section 91 of the CrPC Ex.P29 was also given. However, he does not produce any valid document with respect to the possession of said contraband. The weighment witness Vikas Sonkar was called and the weighment apparatus was physically verified and panchnama Ex.P17 was prepared. On being weighed, quantity of Ganja recovered from the appellant is found to be of 5.5 kg, and weighing panchnama is Ex.P18 was prepared. Recovered Ganja was sealed, and specimen sealed panchnama Ex.P19 was prepared. The Ganja was seized, and the accused person was arrested, and his arrest has been informed to their family members. Spot map Ex.P33 was prepared. Dehati Nalishi Ex.P34 was also recorded on the spot. After search and seizure of the proceeding, Police party along with the seized articles, and the accused persons, came back to the Police Station, and their arrival report was recorded in Roznamchasanha, Ex.P35. FIR Ex.P36 was registered. Seized contraband Cra 1102 of 2025 6 Ganja was kept in custody of malkhana, and obtained acknowledgment Ex.P23. Details of proceedings were intimated to the Senior Officer, which is Ex.P25, and he also made communication to the Special Railway Magistrate, Raipur for drawing the inventory proceeding, and his application is Ex.P39, P40, and P41. The Special Railway Magistrate has drawn inventory proceeding, and samples were drawn, and the relevant Ex.P44, and P45 were prepared. Photographs taken during the inventory proceeding are Ex.P42 and P43. Certificate issued by the Special Railway Magistrate, Raipur is Ex.P46, and sampling slips are Ex.P47 and P48. Sample packets from the seized Ganja were sent to the FSL Raipur for their chemical examination, and obtained acknowledgment Ex.P51. After examination, the FSL report was received vide Ex.P52 and P53, in which Ganja contents was found. After completion of investigation, charge-sheet has been filed against the appellant. In his detailed cross-examination, defense could not extract any material so that his evidence could be disbelieved. He remained firm in saying that he has drawn the search and seizure proceeding, and seized Ganja from the possession of the appellant. 12. PW1- Sukhchand Netam is the Constable posted at PS-Ganj, Raipur, and he called the independent witnesses Shake Shakeel, PW6, and Rajesh Shrivas, PW3. Vikas Sonkar,PW2 is the weighment witness, who turned hostile, however, he admitted his signature over the relevant documents. PW3 and PW6, the independent witnesses though turned hostile, but they admitted their signature over the documents Ex.P3 to P22. 13. PW4-Kopeshwar Patel is Malkhana Moharre, posted at PS-Ganj, Raipur, who proved the safe custody of the seized articles. From his evidence also, Cra 1102 of 2025 7 defense could not elicit any material with respect to tampering the samples or seized articles. 14. PW-5 Mukesh Kumar Sahu is another Constable, posted at the PS-Ganj, Raipur, as Reader to the Office of City Kotwali, Raipur. He received secret information panchnama, and issued acknowledgment Ex.P23, and also the detailed report Ex.P24 and P25. 15. PW7 Dinesh Verma is another Constable, who called the weighment witness Vikas Sonkar, and PW8-Mahesh @ Mahanand is the Constable, who had taken the secret information, and detailed report to the Office of CSP, Kotwali, Raipur. 16. From the evidence led by the prosecution, it has duly proved the search, and seizure proceedings, by which 5.5 kg Ganja has been seized from the appellant herein, and the learned trial Court has meticulously examined the evidence of witnesses, and after detailed discussion, convicted the appellant under Section 20(b)(ii) (B) of the NDPS Act. This Court is also with agreement with respect to finding recorded by the learned trial Court, holding guilty of the appellant for the alleged offence, and thereby, his conviction for the alleged offence punishable under Section 20(b)(ii)(B) of the NDPS Act is affirmed. 17. So far as sentence part is concerned, the submissions made by learned counsel for the appellant that appellant was aged about 22 years of age at the time when the offence is alleged to have been committed, there is no minimum sentence provided for the said Section, and the appellant has already undergone more than eight months of his sentence, and looking to the quantity of contraband, nature of offence, and the period of sentence already Cra 1102 of 2025 8 undergone by the appellant, prayer of learned counsel for the appellant for reduction of sentence for the period already undergone by him, is appealing to this Court. 18. Hon’ble Supreme court in the matter of Mohammad Giasuddin Vs State of Andhra Pradesh, (1977) 3 SCC 287, it has been observed by the Hon’ble Supreme Court as under: “9. Western jurisdiction and 'sociologists, from their own angle have struck a like note. Sir Samual Romilly, critical of the brutal penalties in the then Britain, said in 1817 : "The laws of England are written in blood". Alfieri has suggested : 'society prepares the crime, the criminal commits it. George Micodotis, Director of Criminological Research Centre, Athens, Greece, maintains that 'Crime is the result of the lack of the right kind of education.' It is thus plain that crime is a pathological aberration, that the criminal can ordinarily be redeemed, that the State has to rehabilitate rather than avenge. The sub-culture that leads to anti-social behaviour has to be countered not by undue cruelty but by re-culturisation. Therefore, the focus of interest in penology is the individual, and goal is salvaging him for society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today views sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of social defense. We, therefore consider a therapeutic, rather than an in 'terrorem' outlook, should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. In the words of George Bernard Shaw : 'If you are to punish a man retributively, you must injure him. If you are to reform him, you must Cra 1102 of 2025 9 improve him and, men are not improved by injuries'. We may permit ourselves the liberty to quote from Judge Sir Jeoffrey Streatfield : 'If you are going to have anything to do with the criminal courts, you should see for yourself the conditions under which prisoners serve their sentences.” 19. Considering the facts and circumstances of the case, nature of offence, and also length of detention period of the appellant, further, the law laid down by the Hon’ble Supreme Court in Giasuddin (supra) case, this Court is of the opinion that ends of justice would meet if the sentence awarded to the appellant is reduced for the period already undergone by him. 20. In the result, while maintaining the conviction of the appellant for the offence under Section 20(b)(ii)(B) of the NDPS Act, his sentence is reduced for the period already undergone by him. The fine sentence, as well as the default stipulation awarded by the learned trial Court shall remain intact. 21. Appellant is reported to be in jail since 23.04.2025, and he be released forthwith, if not required in any other case, subject to compliance of fine sentence, and default stipulation. 22. With aforementioned reduction/modification of sentence, this appeal is partly allowed. 23. Record of trial court along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- (Ravindra Kumar Agrawal) JUDGE padma